Friday, October 30, 2015
By Walter F. Roche Jr.
A Davidson County judge today allowed a suit challenging the legality of a permit issued by the state for the construction of a 12-mile pipeline serving the US Nitrogen plant in Midway to go forward.
In a session of a little under one hour, Chancery Court Judge Claudia Bonnyman dismissed another parallel suit turned filed by opponents of the pipeline.
Attorneys for the Tennessee Department of Transportation had argued that the landowners lacked the legal standing to challenge the permit issued for the pipeline to the Nolichucky River.
"We are alive and standing," said Nashville attorney Elizabeth Murphy, who represents the landowners.
Murphy said she will now file an amended complaint and the next step in the suit could be an effort to conduct depositions and subpoena documents.
Murphy said the remaining case will now go forward on the issue of whether TDOT had the legal authority to issue the permit.
She has asked for a for a declaratory judgment that the agency exceeded its authority when it issued the permit last year.
Though the pipeline is apparently complete, the plant, which will produce ammonium nitrate, is not yet in operation. A phased-in startup is expected by the end of the calendar year.
Monday, October 26, 2015
By Walter F. Roche Jr.
Rebuffed by the district attorney general, a Greene County resident has made a direct appeal to the foreman of the Greene County Grand Jury to gather evidence about a transaction related to the US Nitrogen project.
In an Oct. 12 letter to Ron Metcalfe, the jury foreman, Donahue Bible asked for a meeting to discuss a land option agreement between a local official and US Nitrogen.
Bible made the direct appeal after District Attorney General Dan Armstrong concluded in a letter to Bible and his attorney that he saw nothing illegal in the option agreement between J. W. Douthat and US Nitrogen.
"I am requesting a meeting with you at your earliest convenience," Bible wrote in the letter to Metcalfe, citing a state law that gives private citizens the right to bring evidence directly to a county grand jury.
Bible noted that he has been a resident of Greene County for 50 years and his property abuts the Nolichucky River.
The US Nitrogen project includes a 12 mile double barrelled pipeline from the Nolichucky River to the newly constructed US Nitrogen manufacturing facility.
"We have not been able to convince Attorney General Armstrong to take our evidence to the grand jury," Bible continued.
Despite several meetings and discussions, Bible said all of his efforts have been unsuccessful.
Bible said he wants the panel to look into the Sept. 11, 2013 land option agreement between Douthat and US Nitrogen.
At the time Douthat was a member of the Industrial Development Board of Greeneville and Greene County and the Old Knox Utility District, both of which played major roles in the project.
Though he abstained from an earlier vote on the US Nitrogen project, Douthat cast a favorable vote at a July 18 IDB meeting on a motion to resubmit an application to the state for approval of the pipeline project. The motion was approved.
The pipeline made it possible for US Nitrogen to bypass the Old Knox Utility District for the purchase of millions of gallons of water per week.
Two Douthat properties were eventually sold to US Nitrogen.
A 13.67 acre property was sold to US Nitrogen for $148,740 on Oct. 9 of last year. Douthat Properties, LLC sold a second larger tract to US Nitrogen for $851,251.38 on Oct. 24.
US Nitrogen subsequently sold that second parcel for $550,000, a nearly $300,000 loss or 35 percent loss.
Sunday, October 25, 2015
By Walter F. Roche Jr.
Opponents of a 12 mile pipeline to the Nolichucky River are charging that the permit for that pipeline
was issued as a political favor and a corporate recruitment tool.
The charges are included in an 18-page motion for summary judgment filed in Davidson Chancery Court in a suit challenging the legality of a state permit that made the US Nitrogen pipeline possible.
The motion states that the Tennessee Department of Transportation, which issued the permit on July 31, 2014, does not have the authority "to issue a utility occupancy permit to chemical manufacturers."
The filing comes as an opposing motion seeking outright dismissal of the suit is scheduled for a Friday hearing in Nashville before Chancellor Claudia Bonnyman.
The suit was filed by Nashville attorney Elizabeth Murphy, who represents Greene County landowners, including two who have charged that US Nitrogen trespassed on their property to install the pipeline.
TDOT, US Nitrogen and the Industrial Development Board "came across private farms with the disputed pipeline" accompanied by armed security, the motion states.
TDOT lawyers have asked for the suit to be dismissed asserting that the agency does have the legal authority to issue a permit on state highway right-of-way.
Citing the applications filed by US Nitrogen to TDOT last year, the summary judgment motion notes that the application itself cites the support of Gov. Bill Haslam.
Referring to the state law governing right-of-way permits, the filing states that the permits should only be granted to utilities and not as "political gift packages."
Instead of going to a utility serving the general public, the permit was issued as a "corporate recruitment tool promoted by politicians to bring chemical manufacturers to East Tennessee,"the motion states.
Also filed by Murphy was a 10-page statement of undisputed facts, which recounts the history of the pipeline application, including an initial rejection by TDOT.
Stating that US Nitrogen "can pay for water like everyone else," the filing notes that the company initially said it planned to purchase needed water from local utilities, but then abandoned those plans.
The hearing on the summary judgment motion is scheduled for Nov. 6.
Saturday, October 17, 2015
By Walter F. Roche Jr.
Opponents of the US Nitrogen project have filed an amended complaint in a suit filed to challenge the legality of a permit issued for a 12 mile pipeline.
The amended complaint comes as an Oct. 30 date has been set for a hearing on motions to dismiss the complaint in its entirety.
The amended complaint filed in behalf of local residents Ann Calfee, Jack Renner, Jeremiah Cluesman, Ruth Dolin and Rueben Stone, asks a Davidson County Chancery Judge to declare that the permit issued by the Tennessee Department of Transportation (TDOT) is invalid.
Originally the plaintiffs had asked for an injunction to halt construction of the pipeline, but that issue became moot as US Nitrogen went forward with the pipeline which connects to the Nolichucky River.
"Petitioners request the court to declare that the statutes governing TDOT ... do not authorize it to grant use of public highway rights-of-way to non-utilities and do not allow granting the rights of way for economic development other than for gas lines via bridge attachments," the new complaint states.
The suit is one of the few remaining as several other efforts to block the US Nitrogen project in the courts have been turned back.
Attorneys for TDOT have denied the charges in the suit and have asked Chancery Court Judge Claudia C. Bonnyman to dismiss the case.
The $200 million US Nitrogen project is nearing completion and company officials have announced a phased-in startup for later this year.
The amended complaint filed earlier this month by Nashville attorney Elizabeth L. Murphy repeats the details of the original complaint.
"The TDOT permit No. TN 81566 does not conform to state law or TDOT rules," the new filing concludes.
Tuesday, October 6, 2015
By Walter F. Roche Jr.
An official of US Nitrogen has reported to Tennessee regulators that storm water runoff at its Midway site exceeded by more than 100 times the national cut off on concentration limits for magnesium.
In a Sept. 18 letter to the state Department of Enviroment and Conservation, Justin Freeark, US Nitrogen plant manager reported the high magnesium concentrations were recorded at three separate locations.
The two-page letter did not specify when the high readings were recorded, but the company said in a statement that the readings came in a recent annual test required under its state permit.
"Magnesium concentrations of 6.44 milligrams per liter (mg/L), 8.54 mg/L and 12.3 mg/L were reported, respectively. The cut-off concentration for magnesium is 0.64 mg/L," the letter to TDEC states.
Freeark noted that the plant, which will produce ammonium nitrate, is not yet in operation. Company officials have announced a phased in start-up pegged to begin by year's end.
In the letter, which was sent to TDEC's regional office in Johnson City, Freeark added, "Once operations do begin, industrial activities at the facility will not utilize magnesium or materials containing notable levels of magnesium."
According to the letter, the company suspects the high concentrations comes "from background concentrations, potential fertilizer application, and/or from water flowing through or across rock."
Freeark stated that magnesium levels exceeding the benchmark level "have been detected in water samples collected in the Nolichucky River and other area surface waters."
In a footnote, Freeark reported that magnesium levels of 4.5 mg/L were found in test samples from the Nolichucky and 2.6 mg/L in Greeneville's public water supply. Those samples were tested and collected by a private firm on contract to US Nitrogen.
He also disclosed that magnesium was a component of the fertilizer applied on the site to establish a permanent vegetative cover.
In the statement issued today, US Nitrogen noted that the test result were "self reported." The company stated that the benchmark standard "is not locally adjusted to account for existing levels of magnesium in the Greene County environment."
The company added that since this was the first annual report, it was the first time that magnesium levels have been recorded.
"US Nitrogen would emphasize that the company has not begun operations and therefore, the magnesium levels could not have come from any of its processes.
"Based on an investigation, US Nitrogen has submitted to TDEC that the reasons behind the magnesium levels are primarily from pre-existing background concentrations," the company statement concluded.